vs. ) Case No. 97-5964CVL
Respondent. )
This matter arose before the Division of Administrative Hearings and its duly designated Administrative Law Judge P. Michael Ruff upon the submission of a Joint Stipulation and Agreed-Upon Settlement, and Attendant Waiver of the parties' right to a formal hearing. The appearances of record are as follows:
For Petitioner: S. Daniel Ponce, Esquire
For Respondent: Terry A. Stepp, Esquire
The issues in this proceeding concern whether the Petitioners named above should be placed on the Convicted Vendors List described in Section 287.133(3)(d), Florida Statutes.
This controversy arose on December 2, 1997, when the State of Florida, Department of Management Services issued a Notice of Intent, pursuant to Subsection 287.133(3)(e)1, Florida Statutes, to Mr. Liuzzo and the above-referenced Petitioner Hotel Corporation (Hotel), whereby it notified the Petitioners that they were to be placed upon the State of Florida "Convicted Vendors List" for being convicted of a "public entity crime." This circumstance would disqualify them from conducting business with the State of Florida. See Section 287.133(3)(d), Florida Statutes.
A Petition seeking an administrative hearing was filed by the Petitioners on December 15, 1997. Thereafter, the parties engaged in settlement discussions and ultimately prepared the subject Joint Stipulation of Facts. They also waived their right to a formal hearing. The Petition for Hearing, and Joint Stipulation of Facts with attachments, were forwarded to the Division of Administrative Hearings and received on
December 22, 1997. In accordance with the requirements of Section 287.133(3)(e)2.F., Florida Statutes, the purpose of this
Final Order is to adopt the Stipulation of Facts as required by that section and render an adjudication on the above-stated issues.
Petitioner, Anthony Liuzzo, is owner of the above-named Petitioner hotel. On March 10, 1992, he was convicted of a public entity crime as defined in Section 287.133(1)(g), Florida Statutes. That adjudication was rendered in Chautauqua County, New York.
The University Centre Hotel, Inc., is a Florida corporation. It owns and operates the University Centre Hotel, which is located at 1535 Southwest Archer Road, in Gainesville, Florida. The hotel is located in close proximity to the University of Florida, directly across from Shands Hospital. The hotel has one hundred eighty (180) rooms with accompanying restaurant facilities, meeting rooms, banquet halls, a car rental agency and other hotel-related services. The hotel regularly provides conference halls, meeting rooms, and lodging accommodations for persons and events involving or associated with the Shands Hospital and the University of Florida.
Mr. Anthony Liuzzo is owner of the hotel and it is an affiliated entity within the meaning of Section 287.133(1)(a)2, Florida Statutes. Although Mr. Liuzzo is the sole owner of the hotel, the hotel employs a general manager to handle day to day
management. The hotel has, at various times, conducted business with public entities in the State of Florida.
On August 31, 1989, Mr. Liuzzo was indicted by the State of New York in an eleven (11) count indictment against him, five
(5) other persons and two (2) corporations. He was indicted on three (3) counts of grand larceny in the second degree, one count of grand larceny in the third degree, five counts of offering a false instrument for filing in the first degree, and one count of conspiracy in the fourth degree (Counts I through IX and XI of the indictment). The court subsequently dismissed two (2) of the five (5) counts, involving offering a false instrument for filing (Counts V and VI). All of the counts of the indictments were the result of allegedly inappropriate documentation of the operating costs for the Greenhurst Health Care Center, which was owned by Mr. Liuzzo and is located in Jamestown, Chautauqua County, New York. The copy of the indictment is attached to the Joint Stipulation and incorporated therein and in these Findings of Fact as Exhibit "C."
In March 1992 Mr. Liuzzo withdrew his previously entered plea of not guilty and entered an "Alford plea of guilty" to the remaining counts of the indictment (Counts 1 through IV, XII through IX, and XI), pursuant to the case of North Carolina v. Alford, 400 U.S. 25(1969), which permits the defendant to maintain his innocence and otherwise enter a valid plea of guilty. The presiding Judge in that criminal proceeding accepted
the Alford plea of guilty with a commitment that Mr. Liuzzo would receive a non-custodial sentence of probation. A transcript of the hearing where the plea was entered, a Certificate of Conviction, and the Order and Condition of Probation are attached to the Joint Stipulation and adopted therein and herein, by reference, as Exhibit "D."
Anthony Liuzzo and the hotel notified the Department of Management Services of the convictions and provided the details, as shown in Exhibit "E," incorporated by reference in the Joint Stipulation and in this Final Order.
Mr. Liuzzo also provided Exhibit "M," incorporated in the stipulation, notifying the Department of Management Services of the nature of the public entity crime. He provided a copy of the indictment as well as other documentation. Furthermore, Mr. Liuzzo's attorneys made themselves available for any further inquiry prior to a Notice of Intent being issued.
On December 2, 1997, the Department of Management Services issued its Notice of Intent pursuant to Section 287.133(3)(e)1, Florida Statutes, to Mr. Liuzzo and hotel, notifying them of its intent to place them on the Convicted Vendors List.
On December 18, 1997, pursuant to Subsection 287.133(3)(e)2, Florida Statutes, Mr. Liuzzo and the hotel timely filed a Petition for formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, to determine whether it is
in the public interest that Mr. Liuzzo and the hotel be placed on the State of Florida Convicted Vendors List.
Subsection 287.133(3)(e)3, Florida Statutes, establishes certain factors which, if applicable to a convicted vendor, will mitigate against the placement of that vendor on the Convicted Vendors List.
Subsection 287.133(3)(e)3.b, Florida Statutes, establishes "the nature and details of the public entity crime," as a mitigating factor.
The indictment and conviction were for alleged submission by Mr. Liuzzo of false documentation concerning the operating costs of his New York nursing home, for a period from September of 1983 through August 1989. The convictions did not involve the hotel. The convictions were for alleged acts that occurred during a reporting period over ten (10) years ago.
Subsection 287.133(3)(e)3.c, Florida Statutes, established "the degree of culpability of the person or affiliate proposed to be placed on the Convicted Vendors List" as a mitigation factor.
As detailed above, the hotel was not involved in any of the alleged acts at issue in this matter. Mr. Liuzzo's degree of culpability was that of an absentee owner, who lived in Florida and allowed others to manage and run the day-to-day operations of his New York nursing home.
Subsection 287.133(3)(e)3.d, Florida Statutes, established "prompt or voluntary payment of any damages or penalties as a result of the conviction" as a factor mitigating against placement on the Convicted Vendors List.
As part of the disposition of those charges, Mr. Liuzzo agreed to make a monetary restitution in the amount of five hundred thousand dollars ($500,000), half of which is to be paid over the five (5) year term of his probation. He made his first restitution payment in the amount of two hundred fifty thousand dollars ($250,000), on April 28, 1992, and, though the balance was due in annual payments of fifty thousand dollars ($50,000) through 1997, he paid the full amount of the balance, two hundred fifty thousand dollars ($250,000), on April 21, 1993, four (4) years ahead of schedule.
Mr. Liuzzo and the State of New York, in December of 1992, entered a Settlement Agreement regarding any and all disputed matters involving his New York nursing home. See Exhibit "H" attached and incorporated in the Joint Stipulation, which evidences full payment of the five hundred thousand dollar ($500,000) Order of Restitution.
Subsection 287.133(3)(e)3.e, Florida Statutes, establishes "cooperation with state or federal investigation or prosecution of any public entity crime . . . "; as a factor mitigating against placement on the Convicted Vendors List.
Anthony Liuzzo and the hotel fully cooperated with the Department of Management Services in its investigation initiated pursuant to Section 287.133, Florida Statutes.
Section 287.133(3)(e)3.f, Florida Statutes, establishes "[d]isassociation from any person or affiliates convicted of the public entity crime" as a mitigating factor.
Mr. Liuzzo has disassociated himself and ceased all business relationships with the individuals and entities that were indicted with him, with the exception of his father, Joseph Liuzzo and his nephew, Frederick J. Landy, both of whom were dismissed from the indictment.
Subsection 287.133(3)(e)3.h, Florida Statutes, established "reinstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor.
On May 14, 1992, the State of New York discharged Mr. Liuzzo from probation and with the approval and support of
the assistant attorney general with the office of Medicaid Fraud Control, the court ordered the issuance to Mr. Liuzzo of a Certificate of Relief from disabilities. This acts to restore the loss of any civil rights occasioned by the conviction at issue.
On July 23, 1993, the Governor of the State of Florida, in concurrence with Cabinet of the State of Florida, filed its executive Order which granted to Mr. Liuzzo the restoration of civil rights in the State of Florida.
The State of Florida Department of Business and Regulation, Division of Alcoholic Beverages and Tobacco, had preliminarily revoked the hotel's alcoholic beverage license because of the convictions. Subsequently, that revocation was set aside because of the restoration of Mr. Liuzzo's civil rights and because his adjudication had nothing to do with the hotel and its operations.
Subsection 287.133(3)(e)3.j, Florida Statutes, establishes "the needs of public entities for additional competition in the procurement of goods and services in their respective markets" as a mitigating factor.
The hotel provides conference halls, meeting rooms, and lodging accommodations for persons and events involving or associated with the Shands Hospital, the University of Florida,
and other related public entities. A listing of such public entities is attached to the Joint Stipulation and incorporated therein as Exhibit "A." The hotel's facilities and proximity to University of Florida facilities provide unique services to that public entity. Any restriction of the University of Florida's abilities to procure such services from the hotel would negatively impact the market in the Gainesville area by limiting the competition for the provision of such services, thereby increasing the cost to the University of Florida and other public entities for obtaining their services. Further, due to the fact that there are few facilities in the area equipped to provide the type, size and quality of services provided by the hotel, elimination of the hotel as a source to obtain such services results in a corresponding reduction in the quality of services that can be provided to the University of Florida and other state institutions.
Subsection 287.133(3)(e)3.k, Florida Statutes, establishes "any demonstration of good citizenship" as a mitigating factor.
Mr. Anthony Liuzzo, graduated from Riverside Military Academy, located in Fort Lauderdale, Florida, in 1952 and received his BSBA Degree from the University of Florida in 1956. Mr. Liuzzo excelled for four (4) years as a member of the University of Florida Track Team, which included two (2) years as Southeastern Conference Champions.
After graduation, Mr. Liuzzo founded a construction and real estate development company. He eventually expanded his real estate holdings to include nursing homes, shopping malls, condominium apartments, a hotel and banking institutions. Among his Florida projects, are the Gainesville Vizcaya Apartments, located on Southwest 34th Avenue and the University Nursing Care Center.
Mr. Liuzzo has been very active in the community. He was appointed by Governor Bob Graham as the member of the Gainesville Regional Airport Authority. He is active on several boards including the March of Dimes, Florida's Future, Inc., and the Hippodrome State Theater. Additionally he has served as a Florida State Chairman for Special Olympics, and has worked with the Stop Children's Cancer and the Children's Miracle Network Telethon. Mr. Liuzzo is a member of the President's Council at the University of Florida, a large contributor to the University of Florida Foundation and Athletic Association. He is also a member of the Florida Blue Key and a "Bull Gator."
Most recently, Mr. Liuzzo assisted the Hervy and Sandra Daniel family, and provided them free room and board for several weeks, while their young daughter, Ashley Daniel, became the youngest double lung transplant patient treated by the Shands Hospital at the University of Florida. In addition, employees of the University Centre Hotel raised approximately one thousand dollars ($1,000) which Mr. Liuzzo matched dollar-for-dollar,
giving the family a check in the amount of two thousand dollars ($2,000). A copy of a newspaper article, as well as a letter from the Daniel family, is attached to the stipulation as Exhibit "N."
Mr. Liuzzo recently came to the assistance of the Miss Florida Pageant, which was in danger of being cancelled. The University Centre Hotel agreed to become a major sponsor of the event, ensuring that its most recent televised event would go on. A copy of a letter from the Miss Florida Scholarship Organization as well as a newspaper article are attached to the stipulation as Exhibit "O."
A partial list of awards and recognitions is set forth below:
1984- Special Thanks from Governor Bob Graham for assistance in fund-raiser for Florida's Future, Inc.
1985- Appointed to Gainesville-Alachua County Regional Airport Authority by Governor Bob Graham.
1985- Awards of Appreciation for services from Gainesville-Alachua.
1988- County Regional Airport.
1986- Key to the City of Gainesville presented by Mayor David Flagg.
1985- Award of Appreciation for continuing dedication to and support of the University of Florida Track Department.
1987- Award of Appreciation for support of Stop Children's Cancer, Inc.
1988- Award of Appreciation for support provided to children served by Shands Hospital at the University of Florida Miracle Network Telethon.
1989- Distinguished Sponsor Award presented by the Gainesville Writer's Workshop in appreciation for his support of the Writer's Art.
1989- Award of Appreciation for Outstanding Contributions for serving as Grand Host for the Stop Children's Cancer, Inc., Mercedes Benefit.
1989- Award of Thanks for providing assistance in fund raising in fund raiser for Sid Martin's Ridge House.
1991- Award of Appreciation from Florida Special Olympics Game Committee.
1991- Bull Gator Award in recognition of highest levels of contribution and dedication to the University of Florida and Gator Athletics.
1991- Outstanding Jailee, American Cancer Society Jail and Bail program.
1991- Board Member, Alachua County Tourists Development Council; instrumental in laying the foundation of the Alachua County bed tax that allowed for the construction of the $10,000,000 Performing Arts Center.
p.
by | 1992-93-
Hospice). | Junior Women's Club of Gainesville (sponsored |
q. | 1992-93- | American Cancer Society. |
r. | 1992-93- | Red Cross City of Gainesville. |
s. | 1992-93- | "Putting on the Ritz" Benefit for Children's |
Society.
1993- Major Contributor to the State of Florida Museum of Natural History, Gainesville, Florida.
1992-94- Major contributor to Children's Miracle Network (Multiple Sclerosis).
1992-94- Chris Collingsworth Golf Tournament-Mental Health.
1991-94- Alachua County Board of County Commissioners Tourist Development Council - Distinguished Service Award presented for year of dedication to the County.
The parties stipulated that the Joint Stipulation provides a full and complete factual basis for determining whether Anthony Liuzzo and University Centre Hotel, Inc., should be placed on the Convicted Vendors List. In light of the facts and the criteria set forth in Subsection 287.133(3)(e)3.a. through k., Florida Statutes, there has been established to be no disputed issue of material fact between the Department of Management Services and Mr. Liuzzo and University Centre Hotel, Inc.
The parties also entered into a Joint Stipulation and agreed-upon Settlement, filed with the Division of Administrative Hearings on December 22, 1997, incorporating the Joint Stipulation of Fact and attachments referenced above as Exhibit "A," and containing the Stipulation that there is no material issue of fact requiring a formal hearing, thus waiving formal hearing. The Joint Stipulation of Fact, according to the parties' Stipulation and agreed-upon Settlement, established that the Petitioners have satisfied mitigating elements contained in Section 287.133(3), Florida Statutes. They stipulate that the Joint Stipulation of Facts includes elements that raise a rebuttable presumption in favor of the Petitioners that it would not be in the public interest to place the Petitioners on the Florida Convicted Vendors List and that there are no stipulated facts that would overcome that rebuttable presumption.
Therefore, the parties agreed to disposition of this matter by issuance of a Final Order adopting the Settlement Agreement and Joint Stipulation of the parties pursuant to Sections 287.133(3)(e)2.f and 120.57(3), Florida Statutes, with a finding that it is not in the public interest to place the Petitioners on the Florida Convicted Vendors List.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this subject matter of and the parties hereto
pursuant to Section 120.57(1), and 287.133(3)(e)2, Florida Statutes.
Section 287.133(3)(e), Florida Statutes, specifies the procedures to be followed when the Department of Management Services is notified that a vendor doing business in the State of Florida has been convicted of a public entity crime. Among other things, after an investigation has been conducted, and a Notice of Intent issued, the case shall be referred by the Department of Management Services to the Division of Administrative Hearings for an expedited hearing and the entry of a Final Order. If, however, the parties reach a settlement of the case, as was done here, Section 287.133(3)(e)2.f, Florida Statutes (1996), provides that the administrative law judge "shall enter a Final Order adopting the Stipulation, agreed Settlement, or Consent Order."
In light of the mitigating factors identified in the above Findings of Fact, the parties have agreed that it is not in the public interest to place the Petitioners on the Convicted Vendors List. This agreement is embodied in the parties' Joint Stipulation and is predicated on their Joint Stipulation of Facts. This being so, the stipulations with attachments, are adopted and it is concluded that the Petitioner should not be placed on the Convicted Vendors List. Accordingly, in consideration of the above findings and conclusions, it is therefore,
ORDERED that the Joint Stipulation of the parties is hereby adopted. The Petitioners shall not be placed on the Convicted Vendors List.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1998.
Terry A. Stepp, Esquire
S. Daniel Ponce, Esquire Hanzman, Criden, Korge
and Chakin, P. A.
Paul A. Rowell, Esquire Department of Management Services 4050 Esplanade Way
William H. Linder, Secretary Department of Management Services 4050 Esplanade Way
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
